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Petitioners challenge customary marriage Act 

What you need to know:

  • The petitioners are also challenging the Marriage and Divorce law, which provides for the registration of marriage of a minor by a guardian using Form A

As the 16 days of activism against gender-based violence commence, several customary laws have been challenged before the Constitutional Court for allegedly being discriminatory in nature.
The petitioners, Mr Michael Aboneka and Mr Martins Kirya — both lawyers — contend that  contrary to the Constitution, the Customary Marriages Act provides for a different minimum age for a man (18) and a woman (16).

They add that the disparity captured in Section 11(a) (b) of the Customary (Registration) of Marriages runs counter to constitutional provisions “for non-discrimination and equal treatment of both man and woman.
The lawyers are also challenging the Marriage and Divorce law, which provides for the registration of marriage of a minor by a guardian using Form A. 
This, they say, implies marriage of a minor offends the principles of the requirements of marriage of majority 18 and free will/consent of the person getting married, a contravention of the Constitution.

The petitioners also state that Section 3 of the Hindu Marriages and Divorce Act is contrary and inconsistent to administration of justice by courts as mandated by Article 126 of the Constitution. 
The section requires appointment of a guardian to consent to a marriage on behalf of a minor and specifically that courts can make such an order.
The petitioners argue that such provisions encourage marriage of minors, solicited consent, and denigrates the dignity of the women as they are treated differently from the men, and that they need to be annulled in order to redeem the sanctity of marriage as envisaged by the Constitution.

Through their lawyers, the petitioners want court to declare that the set different minimum age for parties to a marriage are discriminatory. 
They also want court to declare that the current laws on marriage, which essentially legalise and promote child marriages, are contrary to Section 129 of the Penal Code Act.

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